PEOPLE OF MI V STEPHEN JOHNSON JR

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 24, 1998
Plaintiff-Appellee,
v
No. 190315
Recorder’s Court
LC No. 93-007429 FH
STEPHEN JOHNSON, JR.,
Defendant-Appellant.
Before: White, P.J., and Hood and Gage, JJ.
PER CURIAM.
Defendant was convicted following a jury trial in the Recorder's Court of Detroit of assault with
intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279. Judge Cynthia GrayHathaway presided over the trial. At the sentencing hearing, defense counsel stated that the
presentence report was accurate, pointed out that this was defendant’s first conviction of an assaultive
crime, and requested that the court impose a lenient sentence. He indicated an intent to appeal, but
made no motion for new trial. Judge Gray-Hathaway then noted that she had considered several letters
from community people who had known defendant for twenty years or more, a letter from an attorney
she knew very well, and a recommendation from the Recorder’s Court Psychiatric Clinic for leniency.
She then indicated that there was no reason to deviate from the guidelines and pronounced a sentence
of three to ten years' imprisonment as a fourth habitual offender. At the same time, however, she set
aside the sentence and, sua sponte, granted defendant a new trial, stating:
". . . so Mr. Johnson, I am going to sentence you to a minimum of three years, maximum
of ten years on the underlying offense. I'm going to vacate that on (sic) the habitual
fourth, I'm going to sentence you to a period of three years, maximum of ten, and them
I'm going to set that aside and I'm going to grant you a new trial."
Upon the prosecutor's request for an explanation of the ruling, the court added:
"Above, all of the reason's above. And I don't think the ends of justice were met in this
matter. I think that there was serious credibility problems on the part of the prosecution
witnesses, and this case just does not add up to Mr. Johnson having committed this
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offense. And maybe he did, but I just don't think that the ends of justice were met in
this case, and I'm going to grant him a new trial."
No judgment of sentence was entered.
Following the filing of a motion for reconsideration by the prosecutor, Judge Gray-Hathaway,
sua sponte, and with no explanation, recused herself from the case. The matter was then reassigned to
Judge Wendy M. Baxter. Judge Baxter granted the prosecutor’s motion for reconsideration, reversed
Judge Gray-Hathaway’s order and reinstated the jury’s verdict. She then sentenced defendant to four
to ten years’ imprisonment for the conviction. That sentence was vacated, and defendant was then
sentenced to five to twelve years’ imprisonment as a fourth habitual offender. Defendant appeals as of
right, and we affirm.
First, defendant argues, for several reasons, that Judge Baxter erred in granting the
prosecution's motion for rehearing and that reversing the grant of a new trial was an abuse of discretion.
We disagree. We note, initially, that Judge Baxter, as a successor to Judge Gray-Hathaway, had the
authority to enter whatever orders Judge Gray-Hathaway could have entered had she continued to
preside in the case. People v Herbert, 444 Mich 466, 471-472; 511 NW2d 654 (1994), overruled in
part on other grounds People v Lemmon, 456 Mich 625, 627; 576 NW2d 129 (1998); MCR
2.613(B) and MCR 6.440(C). In particular, a successor has authority to reconsider the rulings of her
predecessor. Herbert, supra at 472; Harry v Fairlane Club Properties, Ltd, 126 Mich App 122,
124; 337 NW2d 2 (1983).
Motions for reconsideration are governed by MCR 2.119(F), which provides, in pertinent part:
Generally, and without restricting the discretion of the court, a motion for rehearing or
reconsideration which merely presents the same issues ruled on by the court, either
expressly or by reasonable implication, will not be granted. The moving party must
demonstrate a palpable error by which the court and the parties have been misled and
show that a different disposition of the motion must result form correction of the error.
[MCR 2.119(F)(3).]
Although MCR 2.119 is a rule of civil procedure, it applies to criminal cases and permits a court to
correct mistakes which would otherwise be subject to correction on appeal. People v Turner, 181
Mich App 680, 682-683; 449 NW2d 680 (1989); MCR 6.001(D).
Judge Baxter properly reversed Judge Gray-Hathaway because granting a new trial was
improper for several reasons. First, MCR 6.431(B) which was in effect at the time Judge Hathaway
acted, provides that the court, on the defendant’s motion, "may order a new trial on any ground that
would support appellate reversal of the conviction or because it believes that the verdict has resulted in
a miscarriage of justice." Because defendant did not move for a new trial, the court was precluded from
doing so on its own motion. People v Torres (On Remand), 222 Mich App 411, 415; 564 NW2d
149 (1997); People v McEwan 214 Mich App 690, 694: 543 NW2d 367 (1995). Second, the
record established that Judge Gray-Hathaway’s determination that the verdict was against the great
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weight of the evidence was based on extraneous and inaccurate information that was never presented to
the jury. Finally, Judge Baxter independently concluded that the verdict was not against the great weight
of the evidence. We conclude that this was a proper exercise of her discretion pursuant to the
provisions of MCR 2.119(F)(3). Michigan Bank-Midwest v D J Reynaert, Inc, 165 Mich App 630,
645-646; 419 NW2d 439 (1988).
Next, defendant argues that because Judge Gray-Hathaway improperly recused herself, all
subsequent orders entered by Judge Baxter were invalid. We disagree. MCR 2.003(A) permits a
judge to raise the issue of disqualification on his or her own motion. People v Weathington, 183 Mich
App 360, 362; 454 NW2d 215 (1990). Disqualification is appropriate when a judge cannot impartially
hear a case, including when a judge is personally biased or prejudiced for or against a party or attorney.
People v Coones, 216 Mich App 721, 726; 550 NW2d 600 (1996). Although Judge GrayHathaway did not explain the reasons for her self-recusal, there are certain situations where
disqualification without a showing of actual bias is warranted because experience teaches that the
probability of actual bias on the part of the judge is too high to be constitutionally tolerated. Meagher v
Wayne State University, 222 Mich App 700, 726; 565 NW2d 401 (1997). Further, disqualification
and reassignment, may be appropriate “‘to preserve the interests of justice and fairness’ where ‘it would
be unreasonable to expect the trial judge to be able to put out of his mind his previously expressed
views and findings without substantial difficulty.’” Weathington, supra, at 362.
Judge Gray-Hathaway did not abuse her discretion by recusing herself. Judge Gray-Hathaway
had considered extraneous information in making her decision to sua sponte order a new trial at the time
of sentencing. She specifically made a finding that the circumstances did not “add up” to defendant
having committed the offense. It would have been very difficult for Judge Gray-Hathaway to put out of
her mind her previously expressed views. Considering the available record, it does not seem that sua
sponte recusal was unwarranted or improper. Therefore, defendant’s position that Judge Baxter’s
subsequent orders were invalid, ab initio, is without merit.
Defendant’s next claim of error arises out of Judge Baxter’s denial of defendant’s request that
Judge Gray-Hathaway be asked to explain in more detail the reasons for granting a new trial. We find
no error in this ruling. Judge Baxter reversed Judge Gray-Hathaway’s grant of a new trial, in part,
because she determined that Judge Gray-Hathaway considered improper information w assessing
hen
whether the verdict was against the great weight of the evidence. Defendant disputed this finding and
requested that Judge Gray-Hathaway be asked to explain her ruling because, according to defendant,
the basis for Judge Gray-Hathaway’s decision was not adequately explained at the time. We conclude
that Judge Baxter properly denied defendant’s request because, contrary to defendant’s assertions,
Judge Gray-Hathaway did fully explain on the record her reasons for granting a new trial which, as we
have indicated, were inadequate. Therefore, remand to Judge Gray-Hathaway, who incidentally had
recused herself, would have been unnecessary as well as improper.
Lastly, defendant contends that Judge Baxter, after reinstating the jury’s verdict, was required to
reinstate the sentence imposed by Judge Gray-Hathaway as well. We disagree. Aside from a serious
question of whether Judge Gray-Hathaway ever actually sentenced defendant in the first instance in the
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dialogue that took place at the sentencing hearing, the sentence, if imposed, was invalid. A court may
not modify a valid sentence after it has been imposed except as provided by law. MCR 6.429(A). A
court may, however, correct an invalid sentence after sentencing. People v Miles, 454 Mich 90, 96;
559 NW2d 299 (1997). The Supreme Court has repeatedly held that a sentence is invalid if it is based
on inaccurate information. Id. Thus, Judge Baxter had the authority to sentence defendant if Judge
Gray-Hathaway’s sentence was invalid.
After reviewing the record, we hold that Judge Gray-Hathaway’s sentence was invalid because
it was clearly based on inaccurate information. When sentencing defendant, Judge Gray-Hathaway
considered four character letters and a psychiatric report. At the time of resentencing, Judge Baxter
permitted the prosecutor to present testimony that, to some degree, discredited the authenticity of the
letters and the reliability of the psychiatric report. Thus, because Judge Gray-Hathaway relied upon
inaccurate information, defendant’s original sentence was invalid. Therefore, Judge Baxter was
permitted to sentence defendant anew.
Affirmed.
/s/ Helene N. White
/s/ Harold Hood
/s/ Hilda R. Gage
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